People v Ortiz (Sixto)

[*1] People v Ortiz (Sixto) 2016 NY Slip Op 50079(U) Decided on January 22, 2016 Appellate Term, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on January 22, 2016
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Shulman, J.P., Hunter, Jr., Ling-Cohan, JJ.
570513/12

The People of the State of New York, Respondent,

against

Sixto Ortiz, Defendant-Appellant.

Defendant appeals from a judgment of the Criminal Court of the City of New York, New York County (James M. Burke, J.), rendered March 21, 2012, after a jury trial, convicting him, of sexual abuse in the third degree, and imposing sentence.

Per Curiam.

Judgment of conviction (James M. Burke, J.), rendered March 21, 2012, affirmed.

Defendant's conviction of third-degree sexual abuse (see Penal Law § 130.55) was supported by legally sufficient evidence and was not against the weight of the evidence. There is no basis for disturbing the jury's determination concerning credibility. The credited testimony established that two plain-clothes police officers observed defendant position himself near the victim on a subway car during the morning rush hour, place his groin against the victim's hand, which was resting by her side, and repeated this conduct when the victim attempted to move away.

Defendant's argument that he was deprived of the right to a fair trial because the officers testified about what defendant characterizes as uncharged prior bad acts, is without merit. The police testimony that prior to the subject incident, they observed defendant pacing up and down on the subway platform, staring at women and touching his groin area, while his erect penis was visible through his pants, was not proof of a crime (see People v Mateen, 227 AD2d 350, 351 [1996], lv denied 88 NY2d 989 [1996]; People v Flores, 210 AD2d 1 [1994], lv denied 84 NY2d 1031 [1995]). In any event, assuming that this testimony could be considered evidence of prior bad acts, it was not unduly prejudicial and was probative of defendant's intent to subject the victim to sexual contact for his own gratification, the absence of mistake or accident (see People v Molineux, 168 NY 264 [1901]), and to provide background information as to how and why the police followed defendant (see People v Tosca, 98 NY2d 660 [2002]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur I concur
Decision Date: January 22, 2016